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Weymiller v. Lockheed Idaho TechnologiesRespondent's Brief Dckt. 44109

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Employer,

and

Employer Insurance of Wausau,

Surety,

Defendants.

RESPONSIVE BRIEF OF ) DEFENDANT/RESPONDENTS

LOCKHEED IDAHO TECHNOLOGIES ) CO. AND EMPLOYERS INSURANCE ) OFWAUSAU. ) ) ) ) ) ) ) ) )

____________ )

RESPONSIVE BRIEF OF DEFENDANT/RESPONDENTS LOCKHEED IDAHO TECHNOLOGIES CO. AND EMPLOYERS INSURANCE OF

WAUSAU.

APPEAL FROM THE INDUSTRIAL COMMISSION OF THE STATE OF IDAHO R. D. MAYNARD, CHAIRMAN

Matthew J. Vook ISB No. 8901 Law Offices of Kent W. Day 3505 E. Overland Road Meridian, ID 83642

Attorney.for: Defendants/Respondents

Penny Weymiller 10324 W. Arco Highway Idaho Falls, ID 83402

Pro Se Claimant/Appellant

1 - RESPONSIVE BRIEF OF DEFENDANTS/RESPONDENTS LOCKHEED IDAHO TECHNOLOGIES CO., et al.

TABLE OF

L NATURE OF THE CASE . . . . . . . . . . . . . ...................... .4

COURSE OF PROCEEDINGS BELOW . . . . . . . . . . . .. . . . . . . . . . . . .5

III. STATEMENT OF FACTS ..................................... 5

IV. ISSUES PRESENTED ON APPEAL ............................. .12

Argument:

A Whether the Industrial Commission erred in ruling the Claimant is not entitled to further medical care as per Idaho Code § 72-432(1 ).

I. RELEVANT LAW .............................................. 12

II. STANDARD OF REVIEW ........................................ 13

III. CONTENTIONS OF THE RESPONDENTS ........................ .14

A The Industrial Commission properly concluded the Appellant lacked medical evidence to support that her current need for medical treatment is related to her industrial injury .................................... 14

B. Appellant's contentions that the Commission erred are without merit .... 15

Conclusion .................................................................. 16

2 - RESPONSIVE BRIEF OF DEFENDANTS/RESPONDENTS LOCKHEED IDAHO TECHNOLOGIES CO., et al.

v. Blue Ribbon Supply, 103 Idaho 734, 653 P .2d 455 (1982)

Fisher v. Bunker Hill Company. 96 Idaho 341,344,528 P.2d 903, 906 (1974)

Henderson v. McCain Foods, Inc., 142 Idaho 559, 564, 130 P.3d 1097, 1102 (2006)

Irvine v. Perry, 78 Idaho 132,299 P.2d 97 (1956)

Jones v. Emmett Manor, 134 Idaho 160, 164, 997 P .2d 621, 625 (2000)

Jordan v. Dean Foods, 160 Idaho 796,379 P.3d 1064, 1069 (2016)

Knowlton v. Wood River Med. Ctr., 151 Idaho 135, 140, 254 P.3d 36, 41 (2011)

Langley v. State, Industrial Special Indemnity Fund, 126 Idaho 781, 785, 890 P .2d 732, 736 (1995)

Lorca-Merono v. Yokes Washington Foods, Inc., 137 Idaho 446,455, 50 P.3d 461,470 (2002)

McNulty v. Sinclair Oil Corp., 152 Idaho 582, 584-85, 272 P.3d 554, 556-57 (2012)

Paulson v. Idaho Forest Industries, Inc., 99 Idaho 896,591 P.2d 143 (1979)

Roberts v. Kit Manufacturing Company, Inc., 124 Idaho 946, 866 P.2d 969 (1993)

Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003)

Zapata v. JR. Simplot Co., 132 Idaho 513,515,975, P.2d 1178, 1180, (1999)

13

12

12

13

13, 14

12

13, 14

12, 14

14

14

12

12

14

14

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Idaho Code§ 72-438

Idaho Code § 72-706

Idaho Code § 72-732

I. Nature of the Case

STATEMENT OF THE CASE

6, 13

5

13

Claimant/ Appellant, Penny A. Weymiller ("Claimant"), is represented by herself.

Respondents/Defendants, Lockheed Idaho Technologies Co. ("Defendant/Employer"), and

Employers Insurance of Wausau ("Defendant/Surety"), are represented by Matthew J. Vook of the

Law Offices of Kent W. Day, Meridian, Idaho.

This matter was heard at the Industrial Commission Field Office, 1820 East 17th Street,

Suite 300, Idaho Falls, Idaho, on June 29, 2015. Industrial Commission ("Commission") Referee

LaDawn Marsters presided. Penny A. Weymiller ("Claimant") was present in person and

represented herself. Defendants Lockheed Idaho Technologies Co. ("Employer") and Employers

Insurance of Wausau ("Surety") were represented by attorney Lea L. Kear of the Law Offices of

Kent W. Day, Meridian, Idaho. Clerk's R. JO. Claimant and Claimant's witness, Leslie

Soderquist, gave live testimony at the hearing. Clerk's R. 12. Claimant's Exhibits A through C

and Defendants' Exhibits 1 through 3 and 5 through 8 were admitted into evidence. Clerk's R.

12. No post-hearing depositions were undertaken.

On February 23, 2016, the Commission issued its Order in this matter adopting the proposed

decision of Hummel. 's

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5,

II. Course of Proceedings Below

Appellant filed a Worker's Compensation Complaint on August 22, 2013 for an injury as a

result of her employment from March of 1991. Clerk's R. On September 13, 2013 Defendants

filed their Answer to Claimant's Complaint for the 1991 injury. Clerk's R. 8-9.

On June 29, 2015, Referee LaDawn Marsters conducted a hearing in Idaho Falls. The issues

presented at hearing consisted of:

I. Whether Claimant had complied with the notice limitation set forth in Idaho Code §§ 72-701 through 72-706;

2. Whether Claimant sustained an injury from an accident arising out of and in the course of employment;

3. Whether and to what extent Claimant is entitled to medical care.

Clerk's R. 10. Subsequent to the hearing, Referee Marsters left the employ of the Commission, and

the case was reassigned to Referee John C. Hummel. Clerk's R. 10. The parties submitted post­

hearing briefs. On February 23, 2016, the Commission issued its Order adopting the Findings of

Fact, Conclusions of Law, and Recommendation of Referee Hummel. Clerk's R. 25-26. The

Commission found the Appellant had not proven her entitlement to additional medical care. Clerk's

R. 25. The Appellant filed her Notice of Appeal with the Idaho Supreme Court on April 5, 2016.

Clerk's R. 27.

III. Statement of Facts

Appellant asserts work-related onset of bilateral carpal tunnel syndrome ("CTS") on or

about March 1, 1991, while employed by Defendant, Lockheed Idaho Technologies. Hr'g

5 - RESPONSIVE BRIEF OF DEFENDANTS/RESPONDENTS LOCKHEED IDAHO TECHNOLOGIES CO., et al.

was

at that time. 's B. On March 1, 2000, Appellant filed a Workers Compensation Claim

Report, alleging the need for medical care related to the CTS condition, ongoing since 1991.

Deft.' Ex. 1:1; Defs. · Ex. 8:94. After re-evaluation by Surety, including an interview of

Appellant wherein she stated that she first developed symptoms of CTS at work in 1991 and that

those symptoms had always been present since 1991, the previous denial was reversed. Cl. 's Ex.

B:3-4. Appellant received notification of the acceptance of her medical condition of bilateral

CTS and eligibility for related medical treatment by letter from Surety Claims Examiner Bradley

Street, dated May 30, 2000. 1 Id.

Pursuant to referral by INEEL Occupational Medical Program ("OMP")2 physician,

William Belk, M.D., Appellant was evaluated for bilateral wrist pain on November 14, 2000, by

hand surgeon, Timothy Thurman, M.D. Cl. 's Ex. A:1; Deft.' Ex. 8:87-106. Appellant reported

the bilateral CTS symptoms began in 1991 when she was working as a data entry clerk. Cl. 's Ex.

A:2. She began having aching wrists bilaterally with keyboarding, gripping, driving, and

hammering. Id. Appellant asserted the aching was helped with splinting continually at night and

approximately 80% of the daytime hours. Id. Appellant indicated the aching was becoming

worse. Id. Dr. Thurman identified his impression of Appellant's conditions as:

Bilateral wrist pain, which seems to be related to activity. By history, it is worse at night and reduced in intensity with wearing splints. Although, The patient does not have the

1Pursuant to Idaho Code §72-706, Claimant was compensated for medical benefits only as the statute of limitations for indemnity benefits had passed. Deft. 'Ex. 3: 21. 2All of Claimant's medical care related to her bilateral CTS complaints prior to November 14, 2000 were provided through the on-site INEEL OMP. Claimant was seen at INEEL Occupational Medicine for carpal tunnel symptoms on May 24, 1999 (J. Constantino), February 24, 2000 (Dr. Johns), April 11, 2000 (Dr. Bush), May 2, 2000 (Dr. Belk), August 16, 2000 (Dr. Johns). Deft.' Ex. 8:87-106.

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on

October 18, 2000, that were negative for radiculopathy or nerve compression bilaterally. Id.

However, it was noted similar studies December, 1995, were positive for bilateral CTS. Id.

Dr. Thurman performed a diagnostic steroid injection into the right wrist and recommended

bilateral wrist x-rays be performed at OMP. Cl. 's Ex. A:2-3. At follow up on January 10, 2001,

two weeks post-injection, Appellant reported a reduction in symptoms for two weeks post

injection. Cl. 's Ex. A: 7. Options discussed included bilateral CTS releases or a repeat steroid

injection. Id. Appellant was next seen by Dr. Thurman on October 24, 2002, reporting

improvement in her symptoms when INEEL ergonomically adjusted her workstation. Cl. 's Ex.

A:8. She was laid off by INEEL, and upon starting work with new employer Portage

Environmental Consultants ("Portage"), many of her previous symptoms had recurred, in

addition to pain in the right lateral epicondyle region. Cl. 's Ex. ·2; Hr'g Tr. 26:6-16. Portage

had not supplied ergonomic equipment. Cl. 's Ex. A:2; Hr 'g Tr. 26:6-16. Appellant reported that

the specific purpose of her follow up with Dr. Thurman was to request a letter recommending

that Portage provide Appellant with an ergonomic chair, desk, and computer table. Cl. 's Ex.

A:2; Hr'g Tr. 26:6-16.

Appellant next returned to Dr. Thurman on January 26, 2005, requesting a prescription

for bilateral wrist splints, due to ongoing bilateral upper extremity symptoms consistent with

CTS. Cl. 's Ex. A:9. He noted Appellant remained reluctant to pursue additional evaluation or

intervention other than wrist splinting at that time. Id. Appellant was provided with a

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1

aching and intermittent paresthesias

of wrist braces. Cl. 's Ex. · J

at to

bilateral upper extremities despite near continuous use

Dr. Thurman requested Surety authorize staged CT release,

right followed by left, six weeks apart. Id. Appellant contacted Dr. Thurman by phone in early

March 2007, requesting work restrictions. Defs.' Ex. 2:2. Dr. Thurman requested Appellant

return to his office on March 6, 2007, for discussion of her work activities. Id. At that time

Appellant complained of aching and pain in both upper extremities. Id. Appellant was released

to work a maximum of 25 hours per week, pending surgery. Id. Appellant was given a

prescription for Darvocet to be taken at night to help with sleep due to pain in both upper

extremities. Surgery was tentatively set for mid to late May. Id.

On April 17, 2007, Appellant returned to Dr. Thurman with ongoing symptoms of

bilateral CTS. She reported continued use of Darvocet and wrist braces at night. Defs. 'Ex. 2:3-

4. Appellant reported right small finger paresthesias at night. Id. Examination revealed

negative elbow flexion test and no evidence of Tinel around the cubital tunnel bilaterally. Id.

Use of brace and 25-hour work week release was renewed and Darvocet prescription provided.

Id.

Dr. Thurman performed open left carpal tunnel release on June 6, 2007. Defs. 'Ex. 2:6-7.

Appellant was seen for her two 'week post-op visit on June 21, 2007, reporting quite a bit of pain

during the first post-op week and resolution of pre-operative numbness and tingling. Deft. ' Ex.

2:8. Examination revealed healing surgical wound without evidence of complication. Id.

Written and verbal instructions regarding splint use and activity were provided. Id. A work

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to one 6 one

Appellant presented to 2007, for one month post-op visit,

reporting recent return to work at 6 hours per shift with some left thumb discomfort. Defs. ' Ex.

2:10. Work restrictions included continued 6 hour per day work schedule, no climbing, left hand

occasional push/pull, repetitive hand motion, and carry/lift l O pounds with the brace to be used

as needed. Defs. 'Ex. 2: 10-11.

On July 24, 2007, Appellant was seen for her seven week post-op visit, continuing to

complain of pain in her palm, but indicating physical therapy seemed to be helping. Defs. ' Ex.

2:5. Physical therapy was continued, and a work release with continuation of previous

restrictions was provided. Id.

Appellant presented for follow up on August 21, 2007, reporting slow improvement of

left hand discomfort. Defs. ' Ex. 2: 12-13. Appellant reported she would soon start a new job

requiring much less computer work. Id. Examination revealed continued healing of the surgical

wound without evidence of problem, and near normal range of motion. Id. Therapy and

continuation of previous work restrictions was recommended, with follow up in three weeks. Id.

Appellant reported to Dr. Thurman for follow up on September 20, 2007, reporting four

weeks on her new job with workstation modifications completed at her new job site, and that she

had experienced no left hand paresthesias for one month. Defs. ' Ex. 2: 14-15. Appellant was

released to return to work in her regular position for the March 1, 1991, work incident without

restrictions on September 20, 2007. Id. Medical stability was anticipated at the final

examination in four weeks. Id. Appellant testified that she presented for the final examination,

9 - RESPONSIVE BRIEF OF DEFENDANTS/RESPONDENTS LOCKHEED IDAHO TECHNOLOGIES CO., et al.

as was not see 'g

next

went back to see was to get I needed new braces. Id. are no further

medical records from Thurman until October 25,201 Deft.' Ex. 2:16-17.

Appellant contacted Dr. Thurman's office in May, 2012, requesting to return for

treatment Defs. ' Ex. 2: 16-17. Surety authorized one follow-up appointment with Dr. Thurman

to determine if there continued to be a causal connection between Appellant's current symptoms

and the accepted 1991 industrial injury. Deft. 'Ex. 3:22. Appellant canceled two appointments

in June and July of 2012. Id.

Appellant eventually saw Dr. Thurman on October 25, 2012, reporting that after the CTS

release, her symptoms did not resolve. Dr. Thurman wrote:

. . . In 2007, she underwent left carpal tunnel release. Though the record reflects Ms. Weymiller's bilateral hand paresthesisas resolving shortly after her left carpal tunnel release when she obtained a different job requiring less computer work, she indicates her symptoms did not significantly resolve. She complains of bilateral nocturnal numbness and aching in both hands. Her hands ache with driving and while riding her horse. Subjectively, her grip is diminished.

Deft.· Ex. 2:16-17. Appellant described her left wrist discomfort being primarily along the

volar aspect and occasionally at the thumb basal joint. Id. She also complained of left elbow

discomfort and reported she had been self-treating for suspected lateral epicondylitis with a

counter-force brace. Id. The right upper extremity had similar, though less intense symptoms.

She had been taking Ibuprofen for her discomfort, however experienced stomach irritation. Id.

She also tried naproxen, which did not help as much as the Ibuprofen. Id. She denied any

interval injury involving either upper extremity which could be responsible for these symptoms.

Thurman's impression was "HI-defined bilateral upper extremity discomfort in each

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on

counter-

brace. A NSAID was recommended and a prescription Meloxicam 15mg

daily was provided. Id. Appellant was given printed exercises for the lateral epicondylitis to

"hopefully help the symptoms [resolve]." Id. Follow up was scheduled in one month. Id.

Appellant was next seen by Dr. Thurman on January 31, 2013. Defs. · Ex. 2:18.

Appellant reported the trial of meloxicam did not provide any measureable benefit regarding her

wrist discomfort. Id. The wrist discomfort was reportedly associated with prolonged computer,

mouse and keyboard use and grip-type activities, with symptoms being in direct proportion to the

amount of keyboard and mouse use being performed. Id. Along with wrist discomfort,

Appellant also complained of numbness and nocturnal paresthesias, the intensity of which she

directly related to the amount of keyboarding. Id. Dr. Thurman reported, "Therefore, the

patient believes this is directly related to her work." Id. After some discussion and detailed

questioning, Dr. Thurman realized Appellant wanted authorization for new wrist braces. Id. A

prescription was provided to Appellant, who indicated she did not intend to procure them until

they were authorized by Surety. Id.

Appellant was last seen by Dr. Thurman on January 2, 2014. Deft.' Ex. 2:20. Her

complaints remained unchanged. Id. Dr. Thurman noted that she "continues to experience

bilateral hand pain which she associated with computer games." Id. Dr. Thurman's impression

noted Appellant's symptoms to be very suggestive of bilateral wrist median neuropathy. Id. Dr.

Thurman recommended referral to physiatrist Gary Walker, M.D. for consultation for general

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medication. 'g

IV. Issues on Appeal

Pursuant to Appellant's Notice of Appeal, the issue before this Court

Whether the Industrial Commission erred in ruling the Claimant is not entitled to further medical care as per Idaho Code § 72-432( I).

ARGUMENT

I. RELEVANT LAW

A claimant must provide medical testimony that supports a claim for compensation to a

reasonable degree of medical probability whether for an industrial accident claim or an

occupational disease claim Langley v. State, Industrial Special Indemnity Fund, 126 Idaho 781,

785, 890 P.2d 732, 736 (1995). "Probable" is defined as "having more evidence for than

against" Fisher v. Bunker Hill Company, 96 Idaho 341, 344, 528 P.2d 903, 906 (1974). The

claimant must prove that there is a causal relationship between the employment and the need for

medical care. Henderson v. McCain Foods, Inc., 142 Idaho 559, 564, 130 P.3d 1097, 1102

(2006). "[T]his Court has unequivocally held that a claimant has the burden of proving

causation." Jordan v. Dean Foods, 160 Idaho 796,379 P.3d 1064, 1069 (2016).

The Idaho Supreme Court has held that no special formula is necessary when medical

opinion evidence plainly and unequivocally conveys a doctor's conviction that the events of an

industrial accident and injury are casually related. Paulson v. Idaho Forest Industries, Inc., 99

Idaho 896,591 P.2d 143 (1979); Roberts v. Kit Manufacturing Company, Inc., 124 Idaho 946,

12 - RESPONSIVE BRIEF OF DEFENDANTS/RESPONDENTS LOCKHEED IDAHO TECHNOLOGIES CO., et al.

casually to an industrial accident v. Blue Ribbon Supply, 103 Idaho 734, 653

P .2d 455 (1982).

Idaho law requires an employer to provide reasonable medical treatment after an

industrial injury and for a reasonable time thereafter. Specifically, Idaho Code §72-432 provides

in relevant part:

( 1) Subject to the provisions of section 72-706, Idaho Code, the employer shall provide for an injured employee such reasonable medical, surgical or other attendance or treatment, nurse and hospital services, medicines, crutches and apparatus as may be reasonably required by the employee's physician or needed immediately after an injury or manifestation of an occupational disease, and for a reasonable time thereafter. If the employer fails to provide the same, the injured employee may do so at the expense of the employer. (2) The employer shall also furnish necessary replacements or repairs of appliances and prostheses, unless the need therefor is due to lack of proper care by the employee.

Idaho Code 72-432. The Idaho Supreme Court has held that "generally a reasonable time would

be as long as the condition exists." Irvine v. Perry, 78 Idaho 132, 299 P .2d 97 (1956). In

determining whether a claimant has received reasonable medical care, attention must be given to

the diagnosis made and the treatment provided. Burch v. Potlatch Forests, Inc., 82 Idaho 323,

326,353 P.2d 1076, 1077 (1960).

II. STANDARD OF REVIE\V

In reviewing decisions by the Commission, "This Court exercises free review

over the Commission's conclusions of law, but will not disturb the Commission's factual

findings if they are supported by substantial and competent evidence." Knowlton v.

Wood River Med. Ctr., 151 Idaho 135, 140, 254 P.3d 36, 41 (2011) (citing LC. §

13 - RESPONSIVE BRIEF OF DEFENDANTS/RESPONDENTS LOCKHEED IDAHO TECHNOLOGIES CO., et al.

1265, 1269 (2003)). "Substantial

preponderance." Zapata v. JR. Simplot 132 Idaho 51 51 975 P.2d 1178, 1180

(1999). The Court does not re-weigh the evidence, and "[t]he Commission's conclusions

regarding the credibility and weight of evidence will not be disturbed unless they are clearly

erroneous." Knowlton, 151 Idaho at 140, 254 P .3d at 41; Lorca-Merono v. Yokes Washington

Foods, Inc., 137 Idaho 446, 455, 50 P.3d 461, 470 (2002). All facts and inferences are

viewed in the light most favorable to the party who prevailed before the Commission.

Zapata, 132 Idaho at 515,975 P.2d at 1180.

III.CONTENTIONS OF THE RESPONDENTS

A. The Industrial Commission properly concluded the Appellant lacked medical evidence to support that her current need for medical treatment is related to her industrial injury.

Respondents submit that the Commission properly found Appellant had failed to prove her

case. Whether for an occupational disease or industrial accident,3 Claimant must present evidence

that relates the need for medical treatment and her employment. Langley v. State, Industrial Special

Indemnity Fund, 126 Idaho 781, 785, 890 P.2d 732, 736 (1995). While not required to be through

oral testimony, proof of medical causation requires medical evidence. Jones v. Emmett Manor, 134

Idaho 160, 164, 997 P .2d 621, 625 (2000).

3 Respondents are unable to determine from the record whether Appellant argues her claim falls under § 72-438 as an occupational disease. As both an occupational disease and an industrial accident claim require proof a causal relationship, Respondents will not explore this issue further. Langi(!)' v. State, Industrial Spetiaf Indemnity Fund, 126 Idaho 781,785,890 P.2d 732,736 (1995).

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to

last note, it is unclear whether Appellant even

has carpal tunnel syndrome. Respondents further assert that while the record is replete with

references to Appellant's \\lfist issues, there is nothing in the record presenting medical evidence

that supports a causal relationship between Appellant's wrist condition and employment.

Appellant indicated at hearing that she intended to depose Dr. Thurman, and, for whatever

the reason, did not do so. Hr 'g Tr. 8:24-9:3. The Commission cannot create or infer medical expert

testimony or evidence where it does not exist. For that reason, Respondents offer that the Court

should uphold the decision of the Industrial Commission.

B. Appellant's contentions that the Commission erred are without merit.

Appellant argues that the Industrial Commission erred by supporting denial of "an

established workman's [sic] compensation claim for lack of work restrictions ... " Appellant's Br. at

4. The Industrial Commission did not support the denial of claim for any reason relating to work

restrictions; rather, "Claimant's case fails due to the lack of an expert medical opinion on

causation ... " Clerk's R. 14. A finding of whether Dr. Thurman provided work restrictions is

entirely irrelevant to the decision of the Commission in this case.

Appellant also alleges that the Commission "totally ignored the testimony from Appellant's

witness, Leslie Soderquist," and "also totally ignored the Appellant's photos," which were

introduced at hearing as Claimant's Exhibit C. Appellant's Br. at 4. These contentions are not

supported by the record. The Commission's adopted decision specifically notes the consideration of

Ms. Soderquist's testimony and Claimant's Exhibit C. Clerk's R. 12. Appellant may not agree with

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not mean

findings

facts as they are not erroneous and are supported by substantial and competent evidence.

Respectfully submitted this 15th day of December, 2016.

Law Offices of Kent W. Day

Attorney for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on the 15th day of December, 2016, I caused a copy of the foregoing

RESPONSIVE BRIEF OF DEFENDANT/RESPONDENTS to be served by first class mail,

postage prepaid, upon the following:

Ms. Penny Weymiller, Pro Se I 0324 W Arco Hwy Idaho Falls, ID 83402

16 - RESPONSIVE BRIEF OF DEFENDANTS/RESPONDENTS LOCKHEED IDAHO TECHNOLOGIES CO., et al.